When Torah law conflicts with morality

Deuteronomy 21:10 – 25:19

Parashat Ki Tetzei contains a plethora of mitzvot touching on several areas: family relationships, justice, modesty, fair treatment of human beings (and even animals), and conduct during war. While many of these laws seem ethically sound, there is one particularly troubling passage:

“If a householder has a wayward and defiant son, who does not heed his father or mother and does not obey them even after they discipline him, his father and mother shall take hold of him and bring him out to the elders of his town at the public place of his community. They shall say to the elders of his town, ‘This son of ours is disloyal and defiant; he does not heed us. He is a glutton and a drunkard.’ Thereupon his town’s council shall stone him to death.” (Deuteronomy 21:18-21)

This law is shockingly extreme. Killing a child who is ill behaved raises serious moral questions. How can death be an appropriate punishment for a minor, when tradition holds that children below the age of b’nei mitzvah cannot be responsible for their actions? Are children’s personalities so fixed that no education or rehabilitation can work? Is there no hope for such children to grow up and become responsible members of society? And to state the obvious: Who among us has not raised a child who at some point was defiant and disobedient? Are we to put most of our adolescent population to death for being sassy, impertinent, or unruly?

The law of the rebellious child also contradicts a core tenet of Judaism that is particularly salient at this time of year: teshuvah (repentance). A famous incident in the Talmud brings this point home: When Rabbi Meir prayed that certain ruffians should die, his wife Beruriah redirected him to pray instead for them to repent (Berachot 10a). The Rabbis believed that the gates of teshuvah are always open, that it is never too late to ask for forgiveness and mend our ways. We open Kol Nidre with the statement that we are permitted to pray alongside those who sin. Yom Kippur wipes the slate clean for all who seek atonement for their wrongdoing.

What happens when a command in the Torah contradicts Rabbinic theology? Our Sages did not believe in eliminating mitzvot that are found in the Torah, however much they might offend sensibilities. Instead, the Rabbis created laws to limit the possibility of ever carrying out the punishment that the Torah prescribed for the rebellious child. The Talmud, in tractate Sanhedrin, limits the applicability of the law to a son and not a daughter, during a very short span of time around puberty, and only if he consumes a large portion of specifically meat and wine. He is considered liable only if he stole the meat and wine from both his father and mother, only if his parents rebuked him with identical words, and only if the parents look identical to each other. He must be brought to a court of three judges to be warned, and if he sins again, he must be judged by a court of those same three judges plus 20 more. Indeed, Rabbi Yehuda says that there never was, and never will be, a rebellious child stoned to death. Clearly, the Rabbis took great pains to ensure that the Torah law they found morally repugnant could never be actualized.

This is not the only example of a Biblical law that undermines a central Jewish value. We are not Biblical Jews. The oral Torah grew and developed over many centuries, concretizing morals and values that did not always align with the written Torah. Our Sages believed in their own convictions, even when Biblical law contradicted them. Their vision was of a Judaism that lives and breathes in response to generations whose perspectives evolve over time. That is the Judaism that we have inherited. It is an inheritance I, as a modern Jew, treasure. PJC

Rabbi Amy Bardack is the spiritual leader of Congregation Dor Hadash. This column is a service of the Greater Pittsburgh Jewish Clergy Association.